Sixth Circuit Ruling Highlights Evidence Hurdle in False Advertising Claims

In a decision that clarifies the threshold for false advertising claims, the U.S. Court of Appeals for the Sixth Circuit has affirmed summary judgment in favor of Fresh Bourbon, LLC, underscoring that without evidence of consumer deception, such claims cannot succeed.

The case, Victory Global, LLC v. Fresh Bourbon, LLC, centered on competing marketing claims between two African American-owned bourbon companies in Kentucky, both vying for recognition in the competitive spirits market.

Victory Global, operating as Brough Brothers Distillery since its formation in 2013, began selling bourbon in 2020. The company initially sourced its product from Indiana while developing a Louisville distillery that became operational later that year.

Fresh Bourbon, founded in 2017, pursued a different strategy. Before opening its own Lexington facility in 2022, its founders collaborated with another Kentucky distillery beginning in 2018, where they participated in the bourbon production process. The company began selling this Kentucky-produced bourbon in 2020.

The dispute erupted over Fresh Bourbon’s marketing materials, which included claims suggesting it was the first African American-owned distillery in Kentucky, the first to distill or produce bourbon, or the first to do so with an African American master distiller. Victory Global challenged these assertions as false or misleading under the Lanham Act.

In its ruling, the Sixth Circuit applied the established Lanham Act framework, focusing on whether the challenged statements were false and whether they deceived consumers. The court determined that Fresh Bourbon’s claims were not “literally false” because they were open to multiple reasonable interpretations.

For instance, claims about being the first to “distill,” “produce,” or “develop” bourbon could refer to participation in the distillation process rather than ownership of a physical distillery. Since Fresh Bourbon’s founders had participated in distilling bourbon at a Kentucky facility as early as 2018, while Victory Global initially sourced its product from Indiana, these statements could convey a truthful meaning.

“Because the statements could be interpreted in a way that wasn’t objectively incorrect, they cannot be considered literally false under the Lanham Act standard,” explained a legal expert familiar with the case but not directly involved.

The court also emphasized that key terms like “distillery” and “master distiller” lack fixed meanings in the industry. “Distillery” could refer either to a physical production site or to a company involved in producing or selling bourbon. Similarly, “master distiller” has no settled criteria and often functions as a marketing designation rather than an objective qualification.

This ambiguity proved critical. When statements are not literally false, plaintiffs must provide evidence that consumers were actually misled or that the statements had a tendency to deceive. Victory Global failed to produce any such evidence—no consumer surveys, no testimony, no market research demonstrating confusion.

“This ruling reinforces a fundamental principle in Lanham Act litigation,” said a bourbon industry analyst. “Without proof that consumers were actually deceived by marketing claims, allegations of misleading advertising simply cannot survive judicial scrutiny.”

The decision has significant implications for businesses engaged in competitive marketing, particularly those making priority-based claims. Companies must recognize that ambiguous marketing statements, while not inherently actionable, can still create liability if there is evidence they misled consumers.

For the bourbon industry specifically, where heritage and authenticity are powerful marketing tools, the ruling provides important guidance on how claims about being “first” or having historical significance will be evaluated in court.

The case also highlights the importance of consumer evidence in false advertising litigation. Companies considering Lanham Act claims should be prepared to invest in consumer surveys or other empirical evidence demonstrating actual deception before proceeding with litigation.

As both companies continue to compete in Kentucky’s storied bourbon landscape, the ruling serves as a reminder that the legal system requires more than competing interpretations of marketing language—it demands concrete evidence of consumer impact.